Lawyers for Ethicon asked a New Jersey appeals court Tuesday to overturn the $11.1 million verdict in the case of Linda Gross who was the first bellwether trial over allegedly harmful pelvic mesh implants.

A nurse from Watertown, South Dakota nurse, Ms. Gross was implanted with a Prolift mesh made by Ethicon, a subsidiary of Johnson & Johnson, to treat pelvic organ prolapse. In February 2013, she was awarded $11.1 million by a New Jersey jury which included $7.76 million in punitive damages. J&J immediately appealed.

Tuesday, Feb. 23, oral arguments were heard before judges Fisher, Espinosa and Rothstadt, as attorneys for Ethicon, the subsidiary, said the verdict should not be allowed to stand.

The New Jersey Law Journal (here) reports attorney Charles Lifland (O’Melveny & Myers), arguing for Ethicon, said Ms. Gross had suffered and the company was “sympathetic” but that it was up to her physician, Dr. Kevin Benson, to inform his patient, not Ethicon.

Day 28, Linda Gross and Adam Slater

The case number is A-000011-14-T02 LINDA GROSS AND JEFFREY GROSS V. GYNECARE, ETHICON, INC., JOHNSON AND JOHNSON, JOHN DOES 1-20.

The panel was particularly interested with how Ethicon on its website and brochures minimized the possibility of complications, something both the doctor, who is the learned intermediary, and the patient rely on.

Lifland argued that the learned intermediary should have shielded the company from the punitive damages award. J&J/Ethicon cannot be expected to detail every possible complication, he argued. There was a good faith effort, he said.

Adam Slater, representing Ms. Gross said the company knew its problems from Day One.

“There was no learning curve, no ambiguity within the company.” Besides, South Dakota does not recognize the learned intermediary explanation especially when the doctor is also in the dark about possible complications.

Prolift partial explant from Gross v. Ethicon trial

Ms. Gross has undergone 20 surgeries to remove the Prolift and repair its damage. Prolift is no longer marketed in the U.S. by J&J.

New Jersey Superior Court appellate division could decide the latest Ethicon appeal in three to six months. ##

After a 31 day trial jurors awarded Gross both compensatory and punitive damages for a total of $11.1 million. They intended to deceive said attorney Adam Slater referring to J&J division, Ethicon. At that time, Ms. Gross had endured 18 surgeries and was unable to sit. NJ Law Journal writes: “The jury’s compensatory damages award was made up of $1.1 million for pain and suffering, $1 million for future medical expenses, $500,000 for future lost wages, $385,000 for past medical expenses, $180,000 for past lost wages, and $185,000 for a per quod claim. Days later, in the ensuing punitive damages trial, the panel delivered a 7-2 verdict awarding an additional $7.76 million.”

While the nine jurors did not find J&J’s Prolift mesh defective they did award Linda Gross $3.35 million in compensatory damages and $7.76 million in punitive damages. J&J appealed. Once the appeals court rules, the case could go before the New Jersey Supreme Court.

Atlantic County Superior Court Judge Carol Higbee, who oversaw the Gross v. Ethicon trial in February 2013, denied motions by J&J for a new trial saying the evidence was very strong in support of plaintiff’s position. Dr. Benson had testified he would not have used the Prolift on Ms. Gross had he known about its risks. Ethicon had cited evidentiary errors made by Judge Higbee. Punitive damages could have been higher she said in declining to reduce them.